CBD firm wins judicial review confirming product legality

Jersey Hemp, the only farm in the British Isles growing hemp and CBD extract onsite to create wellness products, was shut down last year​ after the UK Home Office (HO) stopped export of its products to the UK.

The HO instructed the Government of Jersey to restrict the export of its products to the UK after finding they contained trace elements of the controlled cannabinoid THC—essentially making it a controlled drug.

The Misuse of Drugs Regulations 2001 (MDR) states some products may be considered exempt from control, where  a) the preparation or other product is not designed for administration of the controlled drug to a human being or animal;  b) the controlled drug in any component part is packaged in such a form, or in combination with other active or inert substances in such a manner, that it cannot be recovered by readily applicable means or in a yield which constitutes a risk to health; and c) no one component part of the product or preparation contains more than one milligram of the controlled drug.

To meet the criteria of an exempted product, all three limbs must be met. 

Following an inspection by the UK Home Office last year, the inspector suggested Jersey Hemp’s products had too much THC in them.

Craig Dempster, Jersey Hemp’s commercial director, told NutraIngredients this was due to an analytical error on the side of the HO, adding: “They also thought our method of delivery aimed to deliver the controlled element of the product.”

“Our process is to use HPLC machines to target specific cannabinoids and remove them from the products, so our argument was why would we be trying to deliver the controlled element if we are actively trying to remove it,” he added.

Dempster took the HO to a judicial review of the decision arguing that the products are exempt and claiming damages for the financial loss suffered.

Dempster won the first element of his fight. The recently released Home Office Grounds of Defence document stated ​it is prepared to concede that the products did indeed meet all three limbs and was therefore an exempt product.

It stated the HO now accepts that a proper approach to limb (a) would assess a variety of factors/evidence, which could include the product's packaging, advertising, presentation, administration, labelling, supply chain, and manufacturing technique.

The entrepreneur now has to go through civil court to try to recoup his costs and damages in full.

"As the income dropped off a cliff, we made staff redundant and started selling equipment to try to meet the burden of the creditors," Dempster said. "We lost all shareholder support, and it wasn’t long before the business, in effect, was finished.

"It was 4.5 to 5 years of work and investment, bringing in bespoke equipment and creating a totally traceable production line, to get to that stage. We had crop in the ground, we had had a huge UK retailer trialling the products, which was just about to convert to a launch.

"We had reached the final stages of the novel foods process with all our products validated and on the public list. In fact, we were the only British producer on that list, all other products were imported from the U.S., Eastern Europe or China. So the only homegrown CBD extract was excluded from the British market—the irony!"

Discussing how this ruling might impact others in the industry, he said: "I think this clarifies something for the rest of the industry as I know other companies were concerned about how [last year’s] ruling could impact the view of the legality of other products on the market. Because we know if there’s any question over the legality of the product you are selling, retailers are just going to take it off their shelves.

"This clarifies that as long as you conform to the three limbs, the current legal framework will allow you to import CBD legally."